Canadian Criminal Justice System
Friday, October 19th, 2018
There are many ways to proceed with a court case in the most effective way, but in a personal opinion, I think that an Adversarial System wouldn’t be the best choice. The reason being that the adversary system the binary nature of the adversary system and its particular methods and actions often may prevent some of the major goals of any legal system.
It is naturally presumed that any other system takes away liberty when we speak about the Adversarial System we talk about the philosophy of judgment. In general practice the system is passive, but all that has been changing over the past years as the law changed as well. Unlike the Inquisitorial System, which causes people to look for cases and evidence the Adversarial System waits for someone to bring a complaint and requires the other party to respond. In some cases by the time the court date is set, most of the work is already completed. It is also said that the system is slow and time consuming, the judge can only do so much to speed up the progress of the trial. So to be honest in this time of postmodern knowledge the System might not work out as well. While these disadvantages are true, some say that the slow pace of it all is good for the protection of the individual’s rights. The adversary model employed in the courtroom has affected other aspects of lawyering, including negotiations carried on both “in the shadow of the court” and outside. Scholars have criticized modern adversarial for the ways it teaches people to act toward each other. In return, I’m suggesting variety and diversity for our legal process that will, in turn, require more diverse and complex thinking about which legal ethics would be appropriate in different settings. (Kubicek, T. L. (2006). Adversarial Justice?: America’s Court System on Trial. New York: Algora Publishing. Retrieved from http://ezproxy.humber.ca/login?url=https://search.ebscohost.com/login.aspx?direct=true&AuthType=ip,url&db=e000xna&AN=185589&site=ehost-live&scope=site )
The adversarial process supposedly is designed so that the truth can be determined by listening to both sides of the story and then a third party, the listener or observer, a judge or a jury, in other words, makes a decision. Unfortunately, that is not the way it actually works.
Before defense counsel participated, guilt was rarely challenged, and trials were largely factual sentencing proceedings. Without lawyers at the trials, judges conducted trials with small amounts of evidence. But after defense counsel was created, evidence rules began to be explained. These huge changes transformed the trial system to an adversarial proceeding, the reasoning for this transformation was due to the fact that the defense counsel was having more opportunities to cross-examine during trials. In England, a public official did not prosecute in ordinary criminal trials. Instead, the victim or his relatives or friends prosecuted the case. In eighteenth-century, public officials began to assume the duty of prosecuting criminal cases, and by Independence public prosecution existed in all parts of the land. Public prosecution, of course, demonstrates that early American criminal procedure was not simply an English import, but it also indicates America’s early upbringing of the adversary system.
In America, a public official was increasingly an advocate for the prosecution. This diminished the judge’s role and made an adversarial counsel on the other side which was extremely necessary for fair trials.
The adversarial system of justice works to resolve cases in court by pitting partial advocates for each side against one another with a judge who works to ensure that rules of court and law are followed. But as I’ve said before, this causes people to act out of their norm. ( Jonakait. N. R. (2009) The rise of the American Adversary System: America before England. New York Law School, Retrieved from
In general, the entire system is really slow and cumbersome, but this part of it is the most meaningless since it only causes people to go against each other and cause more problems to arise. Also the cases mostly only get solved by arguments and not solid facts and evidence, it puts innocent people into the system and guilty are let off with a minor punishment. Some individuals may not agree and say that the system is good for many reasons and they might be right but all the facts that were listed may outweigh that statement.
Kubicek, T. L. (2006). Adversarial Justice?: America’s Court System on Trial. New York: Algora Publishing. Retrieved from http://ezproxy.humber.ca/login?url=https://search.ebscohost.com/login.aspx?direct=true&AuthType=ip,url&db=e000xna&AN=185589&site=ehost-live&scope=site
Menkel. M. C. (1996) The Trouble With the Adversary System in a Postmodern, Multicultural World. Georgetown University Law Center, Retrieved from
Jonakait. N. R. (2009) The rise of the American Adversary System: America before England. New York Law School, Retrieved from